Citation Nr: 0405407
Decision Date: 02/26/04 Archive Date: 03/05/04
DOCKET NO. 96-35 415 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to a disability rating greater than 20
percent for strain and myositis of the lumbar paravertebral
muscles and degenerative joint disease (DJD) of the dorsal
spine before September 23, 2002.
2. Entitlement to a disability rating greater than 10
percent for degenerative arthritis of the dorsal spine from
September 23, 2002.
3. Entitlement to a disability rating greater than 10
percent for lumbar degenerative disc disease (DDD) and
myositis with limited motion from September 23, 2002.
4. Entitlement to a disability rating greater than 10
percent for lumbar DDD with right lower extremity
radiculopathy from September 23, 2002.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Counsel
INTRODUCTION
The veteran had active service from July 1980 to July 1983.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
The case returns to the Board following remands to the RO in
November 1998 and March 2001.
The Board notes that the veteran's July 1996 substantive
appeal included a request for a Travel Board hearing.
However, in correspondence received in October 1996, the
veteran instead opted for a personal hearing at the RO, which
was conducted in May 1997.
The Board notes that a discussion of the procedural history
of this case is necessary. In a July 1984 rating decision,
the RO granted service connection for a back disability
characterized as strain and myositis of the lumbar
paravertebral muscles and degenerative joint disease (DJD) of
the dorsal spine. It assigned a 10 percent disability
evaluation. In a January 1992 rating decision, it increased
the evaluation to 20 percent, effective from June 5, 1991.
Following a routine scheduled examination, in September 1994,
the RO issued a rating decision in which it proposed to
reduce the rating for the back disability to 10 percent.
Following notice to the veteran and expiration of the
specified time for response, the reduction was accomplished
in a December 1994 rating decision, effective March 1, 1995.
In December 1994, the RO received from the veteran a claim
for an increased rating for his back disability. The RO
continued the 10 percent evaluation in a June 1995 rating
decision. In June 1996, the RO received from the veteran
correspondence purporting to disagree with the reduction of
his back disability evaluation from 20 percent to 10 percent.
However, the notice of disagreement was untimely with respect
to the December 1994 rating decision. See 38 C.F.R. §
20.302(a) (2003) (a claimant must file a notice of
disagreement with a determination by the RO within one year
from the date of notice of the determination). The RO
accepted the notice of disagreement as timely with respect to
the June 1995 rating decision. The veteran perfected his
appeal of that decision.
The veteran testified at the RO in May 1997. In a September
1997 decision, the Hearing Officer increased the back
disability rating to 20 percent effective June 5, 1991.
Following remands from the Board, the RO readjudicated the
appeal in March 2003. In its rating decision, the RO
established separate ratings for the dorsal spine and lumbar
spine disabilities as follows: 1) DDD of the lumbar spine
with myositis, rated as 10 percent disabling from October 29,
2002; and 2) degenerative arthritis and degenerative disc
arthritis of the dorsal spine, rated as 10 percent disabling
from October 29, 2002.
In a September 2003 rating decision, the RO found clear and
unmistakable error in the March 2003 rating decision to the
extent it failed to also assign a separate disability rating
for right lower extremity radiculopathy from the lumbar DDD,
as required pursuant to amended spine rating criteria. It
recharacterized the disabilities and assigned new effective
dates as follows: 1) degenerative arthritis of the dorsal
spine, rated as 10 percent disabling from September 23, 2002;
2) lumbar DDD and myositis with limited motion, rated as 10
percent disabling from September 23, 2002; and 3) lumbar DDD
with right lower extremity radiculopathy, rated as 10 percent
disabling from September 23, 2002.
On review of the claim, the Board finds that the veteran has
continuously pursued this appeal based on the June 1995
denial of the December 1994 claim for an increased rating for
the service-connected back disability. Accordingly, the
issues on appeal are as phrased above.
The case has again returned to the Board. However, the Board
finds that yet additional development is necessary. This
appeal is therefore REMANDED to the RO via the Appeals
Management Center (AMC) in Washington, DC. VA will contact
you if further action is required on your part.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. § 5100 et seq. (West 2002), was enacted during the
course of this appeal. See 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2003) (regulations
promulgated to implement the statutory changes). Among other
things, it enhanced VA's duty to assist a claimant in
developing facts pertinent to his claim. In pertinent part,
VA is required to make reasonable efforts to obtain relevant
records (including private records) that the claimant
adequately identifies and authorizes VA to obtain.
38 U.S.C.A.
§ 5103A(b). If after making such reasonable efforts VA is
unable to obtain all of the relevant records sought, VA must
so notify the claimant. Id. Such notice must identify the
records not obtained, explain the efforts made to obtain
them, and describe any further action VA will take on the
claim. Id. VA regulations further specify that reasonable
efforts to obtain private records generally consist of an
initial request for records and, if the records are not
received, at least one follow-up request. 38 C.F.R. §
3.159(c)(1).
In this case, the veteran provided a completed release and
authorization to obtain medical records from M. Kornhaber,
M.D., his primary physician, for records of treatment for the
service-connected back disability from 1994. The RO issued a
request for these records in March 1999. Review of the
claims folder fails to disclose receipt of any records or
other response from Dr. Kornhaber, a follow-up request from
the RO for those records, or any notice from the RO to the
veteran that it had not obtained the records. Pursuant to
the VCAA, a remand is required for the RO to undertake the
appropriate action with respect to this evidence.
Also during the course of this appeal, VA promulgated new
regulations for the evaluation of intervertebral disc
syndrome, 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5293,
effective September 23, 2002. See 67 Fed. Reg. 54,345 (Aug.
22, 2002) (codified at 38 C.F.R. pt. 4). The amendments
provide for evaluation of intervertebral disc syndrome on the
basis of either the total duration of incapacitating episodes
in a 12-month period or the combined rating for separate
evaluations for chronic orthopedic and neurologic
manifestations. See 38 C.F.R.
§ 4.25 (combined ratings table).
Later, VA promulgated new regulations for the evaluation of
the remaining disabilities of the spine, effective September
26, 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003) (to be
codified at 38 C.F.R. pt. 4). The amendments renumber the
diagnostic codes and create a general rating formula for
rating diseases and injuries of the spine, based largely on
limitation or loss of motion, as well as other symptoms. The
amendments also provide for separate evaluations for any
associated objective neurologic disability and designate a
rating formula for intervertebral disc syndrome (renumbered
as Code 5243) based on incapacitating episodes that utilizes
the standards promulgated in the earlier amendments to Code
5293.
Generally, where the law or regulation changes after a claim
has been filed or reopened but before the administrative or
judicial appeal process has been concluded, the version most
favorable to the veteran will apply. Karnas v. Derwinski, 1
Vet. App. 308, 313 (1991). However, when amended regulations
expressly state an effective date and do not include any
provision for retroactive applicability, application of the
revised regulations prior to the stated effective date is
precluded, notwithstanding Karnas. 38 U.S.C.A. § 5110(g);
DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-
2000.
Review of the most recent medical evidence, the report of the
October 2002 VA examination, finds several deficiencies that
prevent proper application of the amended rating criteria.
First, there is no assessment of the duration of
incapacitating episodes, if any, associated with the
veteran's back disability. Such information is required in
order to evaluate the disability as intervertebral disc
syndrome. Second, the reported range of motion test results
do not include findings for bilateral rotation. The general
rating formula for disease or injury of the spine provides
for assessment of disability based on combined range of
motion on all maneuvers, i.e., forward flexion, backward
extension, right and left lateral flexion, and right and left
rotation. Thus, proper evaluation of limitation of motion
cannot be accomplished without range of motion findings for
rotation. In addition, although the October 2002 VA examiner
noted that the veteran had additional pain on motion, there
is no indication as to whether the range of motion findings
stated accounted for limitation due to pain. See DeLuca v.
Brown, 8 Vet. App. 202 (1995). Finally, although the RO has
established a separate disability rating for right lower
extremity radiculopathy as a neurologic manifestation of
intervertebral disc syndrome, there is little evidence
relating to this disability, though it is unclear whether the
lack of information is due to inadequate evaluation or to
minimal evidence of disability. See 38 C.F.R. § 4.2 (if an
examination report does not contain sufficient detail, it
must be returned as inadequate for rating purposes).
Additional development is needed to address this issue.
With respect to the amended rating criteria and diagnostic
codes, the Board emphasizes that the changes eliminate
separate diagnostic codes and ratings for disability of the
dorsal or thoracic spine. In addition, relevant range of
motion parameters is expressed in terms of "thoracolumbar
spine," rather than separate assessments for individual
thoracic and lumbar spine segments. These changes will
present rating challenges given the fact that a separate
rating for veteran's disability of the dorsal spine has been
previously established. When readjudicating the issues on
appeal, the RO is cautioned to carefully apply the amendments
as appropriate. See Karnas, supra; DeSousa, supra.
Accordingly, the case is REMANDED for the following action:
1. The RO should take the appropriate
steps to obtain medical records from M.
Kornhaber, M.D., for treatment of the
veteran's back disability from 1994 to
the present. All actions taken should be
documented in the claims folder as
required by law.
2. The RO should arrange for the veteran
to be scheduled for a VA orthopedic
examination to determine the severity of
disability from
(1) degenerative arthritis of the dorsal
spine, (2) lumbar DDD with myositis and
limited motion, and (3) lumbar DDD with
right lower extremity radiculopathy.
The examination must include range of
motion test results for forward flexion,
backward extension, right and left
lateral flexion, and right and left
rotation of the thoracolumbar spine. If
the veteran has pain on motion, the
report should state the degree to which
range of motion is limited by pain. The
examination should include any other
study or test deemed necessary by the
examiner.
The examiner is asked to identify and
describe any current thoracolumbar spine
symptomatology, to include the presence
or absence of muscle spasm or guarding,
abnormal gait, abnormal spinal contour,
and localized tenderness. Discussion
should also include indications of
functional loss associated with the
thoracolumbar spine due to more or less
movement than normal, weakened movement,
excess fatigability, incoordination, pain
on movement, swelling, and deformity or
atrophy of disuse. If there is no
evidence of any of the above factors on
examination, the examiner should so
state. The examiner should also inquire
as to whether the veteran experiences
flare-ups. If so, the examiner should
describe, to the extent possible, any
additional functional loss or limitation
of motion during such flare-ups.
In addition, the examiner should question
the veteran as to the total duration of
incapacitating episodes he experienced
during the previous 12-month period, if
any, and include the information provided
in the examination report. An
"incapacitating episode" is a period of
acute signs and symptoms due to
intervertebral disc syndrome that
requires bed rest prescribed by a
physician and treatment by a physician.
Finally, the examiner is asked to
identify the specific nerve associated
with the veteran's right lower extremity
radiculopathy and to describe all
associated symptoms and manifestations.
If deemed necessary or helpful, the
examiner may request consultation with,
or additional examination by, a
neurologist in order to assess this
disability.
3. The veteran is hereby advised that
failure to report for a scheduled VA
examination without good cause may have
adverse consequences for his claim.
4. After completing any additional
necessary development, the RO should
readjudicate each issue on appeal. In so
doing, the RO must consider each version
of the rating criteria discussed above as
appropriate. See Karnas, supra; DeSousa,
supra.
When applying the amended rating
criteria, the RO should initially
determine whether the veteran has had any
associated incapacitating episodes, and
if so, determine the appropriate
evaluation on that basis. It should then
determine the appropriate diagnostic code
and disability rating for the orthopedic
manifestation (lumbar DDD and myositis
with limited motion) and the neurologic
manifestation (right lower extremity
radiculopathy) of the veteran's back
disability. The RO should assign
whichever rating results in the higher
evaluation when all disabilities are
combined under 38 C.F.R. § 4.25. The RO
should also address whether a separate
rating for disability of the dorsal spine
remains viable following the 2003
amendments to the rating criteria for
spine disabilities and recharacterize the
veteran's service-connected disabilities
if deemed necessary and appropriate. The
RO may wish to consider comments by the
Board on pages 5 and 6 of this decision
regarding the complexities of the various
rating difficulties posed by the old and
new regulations.
If the disposition of any issue on remand
remains unfavorable, the RO should
furnish the veteran and his
representative a supplemental statement
of the case and afford the applicable
opportunity to respond.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The veteran has the
right to submit additional evidence and argument on the
matter or matters the Board has remanded to the RO.
Kutscherousky v. West,
12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
BETTINA S. CALLAWAY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).